Citation NR: 9737302
Decision Date: 11/05/97 Archive Date: 11/12/97
DOCKET NO. 97-06 613A ) DATE
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to waiver of an overpayment of pension benefits.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
B. J. Steadman, Associate Counsel
FINDINGS OF FACT
1. The veteran in this case served on active duty from
January 1943 to December 1995.
2. On October 27, 1997 the Board was notified by the
Department of Veterans Affairs (VA) Regional Office, Houston,
Texas, that the veteran died on April [redacted], 1997.
CONCLUSION OF LAW
Because of the death of the veteran, the Board has no
jurisdiction to adjudicate the merits of this claim.
38 U.S.C.A. § 7104(a) (West Supp. 1997); Rule of Practice
1302, 62 Fed. Reg. 55169 (1997) (to be codified at 38 C.F.R.
§ 20.1302).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In October 1992, the veteran was notified that an overpayment
of VA benefits had occurred. In November 1992, the veteran
was notified that the overpayment was assessed at $6,222 and
was provided with his rights regarding a request for waiver
of the debt. The veteran did not file a timely request for
waiver of the debt. In July 1996, the veteran’s debt was
increased by $2,398. The veteran filed a request for waiver
of the debt in August 1996. In September 1996 the Committee
on Waivers and Compromises (COWC), denied the request for
waiver of the original debt of $6222 as not being timely and
in January 1997, the COWC granted the request for waiver of
the increased amount of the debt. Since $5,677 had been
collected on the previously denied debt, a balance of $545
remained to be paid. In February 1997, the veteran appealed
the denial of the remaining $545 debt.
Unfortunately, the veteran died during the pendency of the
appeal. As a matter of law, veterans’ claims do not survive
their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44
(Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34
(1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). This
appeal on the merits has become moot by virtue of the death
of the veteran and must be dismissed for lack of
jurisdiction. See 38 U.S.C.A. § 7104(a); Rule of Practice
1302, 62 Fed. Reg. 55169 (1997) (to be codified at 38 C.F.R.
§ 20.1302).
In reaching this determination, the Board intimates no
opinion as to the merits of this appeal or to any derivative
claim brought by a survivor of the veteran. 38 C.F.R.
§ 20.1106 (1996).
ORDER
The appeal is dismissed.
V. L. Jordan
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision is the
notice of the action taken on this appeal by the Board of
Veterans' Appeals.
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